Volume 19, numéro 4, 1978

EN :

In the sphere of public inquiries, i.e. those which are limited to the exercice of the power of inquiry and recommendation to a higher instance, the Quebec legislator has enacted different provisions conferring upon the investigators the power to punish acts of contempt.

Such provisions were necessary because investigators, as opposed to judges of the superior courts and the courts of records, possess no inherent capacity to impose penalties for acts of contempt committed in or out of their presence.

To this end, the legislator has conferred upon investigators the power to condemn for contempt of court, by provisions which refer to the powers of the Superior Court in this matter. The investigators therefore may punish acts of contempt committed in their presence, such as witnesses' refusal to testify or produce documents. It is however more difficult to determine if the investigators are empowered to punish acts of contempt committed outside their presence, for usually inferior courts are not so empowered.

In this connection, the courts have also examined the nature of contempt, which can be either civil or criminal depending on the nature of the jurisdiction exercised and the offence committed.

With respect to public inquiries, it is equally interesting to ask oneself if the investigators can use contempt of court as a means of punishment. Relative to this question, we think that the investigators should sanction contempt only as a coercive means and not as punishment.

Upon conviction of contempt, it is important that the convicted parties have some recourse, since the decisions may have serious consequences such as a fine or imprisonment. In this regard, the courts agree to exercice their powers of control when commissioners exceed their jurisdiction. There is however no right to appeal the commissioner's decision.

Investigators may conceivably use such vast powers in an arbitrary and abusive manner. In a perspective of legislative reform, we would be of the opinion that it would be preferable to attribute such a power to a court of justice rather than to the investigators themselves.

EN :

This paper analyses the legal implications of photocopying with regard to the Copyright Act of Canada. Under the law, photocopying is normally illegal, unless it amounts to « fair dealing ». However, this latter exception, at best ambiguous, does not provide a safe shelter under which some of the most common practices could be condoned. In fact, what falls in the scope of the « fair dealing » provision remains a most debatable matter.

From these considerations stems the urgency of a change in the law. Parliament should insert a provision delineating in a practical way the sphere of lawful photocopying. On the other hand, copyright owners should be compensated for the use made of their works and collective mechanisms should be created for the recovery of such compensation.

EN :

While the terms « authorization » and « consent » are commonly used in juridical language, their definition end precise meaning are not acknowledged by the Quebec legislator. In fact the two terms are often used interchangeably. Both the legislative history of the first paragraph of article 20 of the Civil Code, an article which provides protective measures for the discerning minor entering into a medical contract, and the reforms suggested by the Civil Code Revision Office, demonstrate this confusion as to the proper juridical terms and as to the role of the parental and judicial sanction. The author maintains that the term « consent » is not applicable to the juridical role of the parent of judge.

EN :

This essay defines the concept of « investment contract » as used in the securities acts. It analyses the classical Howey test and the more recent « risk capital » approach as formulated by Sobieski and Hawaï Market.

It is suggested that Howey consisted originally of the well-known, ever repeated classical test, and of an alternative approach based on risk. This last important element of Howey was mistakenly dropped by the Courts. It is submitted that the Howey test, regenerated and liberally applied, is dynamic and well adapted to cover all possible situations and precludes the necessity of a different definition.

U.S. Courts increasingly use the « investment contract » concept as afar-reaching catchall definition. It is further submitted that the Canadian Courts, encouraged by the Supreme Court's decision in Pacific Coast Coin Exchange of Canada, might use the concept even more comprehensively than their American counterparts.

EN :

The purpose of the present paper is to evaluate current Quebec and some Canadian computerized legal information projects. The most important part of the paper studies projects undertaken in relation with either one of the main sources of the law in Quebec: first, statutes and regulations, second, case law and, finally, legal writings (books and periodicals).

A very brief survey enumerates the main problems created by the impact of the computer and the legal challenge that it represents (crime by computer, EFT, etc.). Future perspectives are outlined, taking into consideration, in part, what is done in certain other countries. The situation is described as it was during and up to the first six months of 1978.

EN :

The Charter of Human Rights and Freedoms passed by the Legislature of Québec in 1975 suffers from major restrictions as to its scope. First, it is purely declaratory of existing freedoms, and does not purport to create new ones ; the Charter therefore only prevails on provincial statutes passed after it, and provided that such later acts do not specifically exclude the application of the Charter. Second, the Charter only applies to matters coming within provincial legislative power. Drawing the boundaries of any specific freedom therefore requires identification of the restrictions set upon it by both provincial legislation and federal jurisdiction. This paper attempts such a dedication of the fundamental rights of association and demonstration, set out in s. 3 of the Charter.

Among matters coming within federal jurisdiction, the Criminal Code and the concept of national security are the main limitations on free association and demonstration. Provincial law on labour relations, trespass and private nuisance, the preservation of private property, and municipal regulation of nuisances, impose equally severe limitations.

EN :

The problem of unjust enrichment has often been raised in recent years with reference to litigation concerning contracts with public authorities. Many times, parties to such contracts have invoked this principle to obtain compensation for services provided under contracts later declared irregular or void. The courts have then attempted to apply in the context of administrative law the conditions laid down by civil law doctrine for unjust enrichment.

The transposition to administrative law of the civil concept of unjust enrichment does not, however, appear to have been adequate. To begin with, the principle of unjust enrichment is difficult to dissociate from the quasi-contract of negotiorum gestio in administrative law. Further, the material and legal conditions of unjust enrichment cannot be applied as a whole to administrative law. In this field, unjust enrichment appears as a true quasi-contract in the sense that it requires the assent of the person enriched. Furthermore, the enrichment must have resulted in a real benefit in the general interest of the administration. These special conditions require a different approach toward the notion of unjust enrichment in administrative law.

This approach may be elaborated from the Common Law notion of quantum meruit or from the theory of unjust enrichment in French administrative law.

A new concept of unjust enrichment in Quebec administrative law would lead to finding, in the field of quasi-contracts, a solution which would provide for the protection of both public finances and the individual interests of co-contractants.